In Upholding The TikTok Ban, SCOTUS Compromises, And With It The First Amendment

Free Speech

from the what-it-means-going-forward dept

As the we wrote in our amicus brief (which it appears the justices did not read – guess they didn’t have time…), if the TikTok ban is blessed, it provides a roadmap for how to avoid the Constitution’s prohibition to “make no law” abridging free expression. All the government needs to do is declare that what it is doing it is doing for national security purposes, or perhaps to address some other similar exigency, and to seal the deal include such an accelerated time for enforcement that it will be impossible for the courts to appropriately review what the government is doing. (In fact, simply either claiming a provocative reason, or rushing enforcement, might be enough alone to help the government get away with an unconstitutional attack on speech).

We need not determine the proper standard for mixed-justification cases or decide whether the Government’s foreign adversary control justification is content neutral. Even assuming that rationale turns on content, petitioners’ argument fails under the counterfactual analysis they propose: The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.

Finding that the law effectively banning TikTok is somehow constitutional is a bad decision with all sorts of bad consequences, not the least of which being that it tells the world that we’re not really all that serious about protecting speech when the chips are down, and so maybe other governments need not care about it so much either. The consequence this post is focused on, however, is to what degree the First Amendment’s protection of speech has been undermined altogether here in America. In short: it’s been undermined, although possibly not as badly as it could have been.

But that there might be a glimmer of modest hope does not exonerate this otherwise inexcusable decision. This case should not have been hard: speech interests were affected by this law, whose terms failed to even address the most reasonable justification underpinning the law. (As TikTok pointed out, if data protection was the motivating concern, why were no other platforms targeted? Or even just other Chinese-owned platforms, like Temu?) Because speech interests were affected – those of the platform, as well as those of its users – strict scrutiny should have been applied to the law, at which point the Court should have seen that the lack of narrow tailoring (the law took out a whole platform!) put the law beyond anything that the Constitution would permit.

Yet the Supreme Court still somehow found otherwise.

The question now is whether the decision is indeed as narrow as the Court claims it is, and something that is truly exceptional that leaves untouched other, stronger First Amendment precedent. And there do seem to be a few bright spots. For instance, it basically leaves untouched a few important notions that it looks like the Court is accepting, namely that platforms do have First Amendment rights, and that algorithms implicate this protected editorial discretion. It is also good, perversely, that in finding that only intermediate scrutiny applied, it left untouched the stronger strict scrutiny standard. One concern with the decision at the DC Circuit was that if the TikTok law could survive strict scrutiny, then any unconstitutional action probably could. We would no longer have any robustly meaningful test to use to protect us against incursions on speech rights, or even any rights. So, at least, in the wake of this decision, strict scrutiny remains intact and useful.

On the other hand, what’s the point of it remaining a useful test if the Court can so easily find a basis not to use it. The fundamental problem with this decision is that it takes a law with huge impacts on speech interests and declares it to be a law that is not speech related. Technically it hinges on being “content neutral,” but the upshot is that the Court basically says, “La la la we can’t hear you,” to any speech concerns raised by TikTok or its users.

The challenged provisions are facially content neutral. They impose TikTok-specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States. They do not target particular speech based upon its content, contrast, e.g., Carey v. Brown, 447 U. S. 455, 465 (1980) (statute prohibiting all residential picketing except “peaceful labor picketing”), or regulate speech based on its function or purpose, contrast, e.g., Holder v. Humanitarian Law Project, 561 U. S. 1, 7, 27 (2010) (law prohibiting providing material support to terrorists). Nor do they impose a “restriction, penalty, or burden” by reason of content on TikTok—a conclusion confirmed by the fact that petitioners “cannot avoid or mitigate” the effects of the Act by altering their speech. Turner I, 512 U. S., at 644. As to petitioners, the Act thus does not facially regulate “particular speech because of the topic discussed or the idea or message expressed.” Reed, 576 U. S., at 163.
[From page 10]

Instead, by ignoring those speech interests, and the more heightened scrutiny that should have applied as a result, the Court applied what essentially was little more than rational basis review, even though they called it intermediary scrutiny. In short, according to the Court, because the government had good reason to be concerned with how TikTok slurped up user data and shared it, the government was free to do whatever it wanted in response, no matter how unduly destructive to speech interests (and ineffective in support of its own intended ends) its actions were.

The problem here is that not only was this decision an avoidance of the normal constitutional rule that should have better protected the affected speech interests, but there’s little to keep this particular sort of cop-out limited to this particular case. It will be very easy for other government actions that impact speech to be forgiven in the future, just as this one was, because there’s nothing that actually justifies this one. The same flimsy reasoning could easily be applied in another case, despite the Court’s insistence to the contrary. We’ve seen it happen before*, when the court tries to take a baby step to walk back the First Amendment but ends up with a decision that gets stuck on the books as a giant leap backwards, leaving everyone much less protected than they were before.

* Holder v. Humanitarian Law Project, another case dealing with foreign pressure on First Amendment rights, comes to mind. There was language in that decision explaining how its reasoning curtailing those rights was allowable in that case’s context, and just that context. (“We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.”) Yet that decision nevertheless reverberates in other contexts, including this case, as the Court rested part of its analysis regarding the TikTok ban on that earlier exception that it had somehow found itself Constitutionally able to make.

The TikTok decision is a bad decision, and the per curiam nature of the decision hints that even the Court knows it. It reads like a compromise decision – an attempt to sacrifice TikTok without sacrificing everything – in a situation where, in an extremely tight timeline, the Court needed at least five votes to do something, and there wasn’t enough agreement as to what that something should be. At oral argument, and later during the Free Speech Coalition v. Paxton argument earlier this week, it became clear that several justices were uncomfortable issuing a stay or an injunction to buy more time to adjudicate this case and the important issues implicated more carefully. And it seems there weren’t five votes to say the law was unconstitutional – probably, as oral argument also revealed, because some justices were extremely spooked by the national security implications related to data collection practices.

So if TikTok was going to lose – and it would have effectively lost even if the Court did nothing, given that the deadline for divestment was rapidly approaching – the compromise may have been to try to make it lose in a way that undermined protective First Amendment precedent in the least damaging way. As it was, both Justices Gorsuch and Sotomayor could, correctly, see that the law implicated speech interests, and that ability to recognize it will be important in the future when we need the Court to see them again. But as their concurring opinions made clear, they still would have found the law constitutional, despite its utter lack of narrow tailoring, which strict scrutiny requires. They would have left us with a decision no better than the DC Circuit had issued, where strict scrutiny would become all but useless to protect speech interests.

Under the circumstances, then, this decision may have been the least damaging one the Court could come up with, at least in the available time. But the hope that it wasn’t damaging at all seems naïve. The best we can hope for is that this decision somehow turns out to be the government’s one free bite at the apple, because if it happens again, where the government adopts this roadmap to act unconstitutionally against speech interests, even this Court might start to notice the constitutional problem with such laws and finally decide to do something about them.

Filed Under: 1st amendment, content neutral, free speech, intermediate scrutiny, strict scrutiny, supreme court, tiktok ban
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