Banning TikTok
Why regulating foreign ownership of media companies is a no-brainer, what the oral arguments miss, and my fear for free speech precedent.
This isn’t the first time I’ve written about free speech or TikTok, and given that the TikTok ban, barring SCOTUS intervention, is posed to take effect in less than a week, I imagine I’ll be writing on it quite a bit in the coming weeks.
This is a long one. I break down parts of the oral arguments in what I view as the most important free speech and national security aspects. While I support the ban because I do not believe that foreign entities, much less ones controlled by an adversarial nation, have a “right” to own a media outlet in the United States, I am troubled by how central a role free speech law is playing in these arguments when I think it is tangential at best. I think the divestiture law is a red herring in the world of free speech. Recommendation algorithms, not the PRC, tech companies, or the government, are the most significant ongoing threat to freedom of speech.
I’ll quote frequently from a piece I wrote a few months back describing authoritarian governments’ “asymmetrical advantage” over open societies and how TikTok embodies this advantage. What I mean by “asymmetrical advantage” is that in an open society, authoritarians have a natural advantage to undermine the open society by taking advantage of its openness to, say, flood that society with propaganda or misinformation. If the open society responds through censorship, it is no longer open. It risks succumbing to the authoritarian state’s influence if it does not.
I think TikTok’s First Amendment arguments about the threat of the law forcing a TikTok divestiture are extremely weak. Likewise, when the government focuses on data security, it misses the real danger. Unfortunately, there are many very, very good precedents at risk of being narrowed that absolutely have free speech ramifications. While this case should have been a cut-and-dry issue of whether an American adversary can own a de facto news outlet in America, it may turn into a precedent validating prior restraint.
Background
Implementing the ban
What will happen? “The law [“Protecting Americans from Foreign Adversary Controlled Applications Act” (PAFACA)] passed by Congress last year would make it illegal for app stores from companies like Apple and Google to distribute or issue updates to TikTok at the risk of hefty civil penalties: $5,000 per American user, which could amount to hundreds of billions of dollars” if ByteDance does not sell the app by January 19, 2025.
The U.S. is not alone, with countries ranging from authoritarian Russia to democratic New Zealand and the United Kingdom implementing restrictions.
Is TikTok run by the PRC?
TikTok’s counsel disputed that TikTok was run or influenced by the PRC. He continued to classify TikTok as an American company, dodging questions about the relationship with the parent company, ByteDance. One relevant point was that they could not adequately respond to questions about redacted information in the government’s briefings. I understand the need to protect classified sources. Still, in a case about free speech, this was a bad look for the U.S. Government, especially since there is overwhelming open source evidence that, yes, TikTok is, at best, subject to de facto controls by the PRC.
For a good, recent piece on TikTok in the U.S., read Rest of World’s reporting, which has plenty of links to additional reports on the PRC’s influence on TikTok.
The safe harbor of corporate governance
TikTok argues that it, as an American company, has rights in the U.S. Insofar as this is true, this is a correct statement. Most of the judges’ questions on this topic were fact-based, and they did not seem convinced that the PRC was a non-participating bystander. The judges seemed interested in creating a limiting principle somewhere between a foreign government and an American company controlled by a foreign government.
JUSTICE ALITO: Mr. Francisco, let me see if I can break this down. Suppose that TikTok were outright owned by the People's Republic of China. Would you make the same argument?
MR. FRANCISCO: I wouldn't be making the same argument, Your Honor. Because, there, you would have to confront a very different question, whether a foreign government that was speaking in the United States has First Amendment rights. [The court has not addressed this]
ALITO: if there's a good reason for saying that a foreign government, particularly an adversary, does not have free speech rights in the United States, why would it all change if it was simply hidden under some kind of contrived core -- corporate Structure?
MR. FRANCISCO: Because it is a U.S. speaker.
There is no better evidence of an open society being jujitsu’d by its own freedom. According to TikTok, a foreign adversary can reap the full benefits and protections of U.S. laws while actively undermining them simply because of their corporate registration status.
I don’t have a good solution for this problem. Foreign entities should absolutely enjoy complete freedom and protection under the law as American entities. The openness of our system is what is so attractive. Hundreds of thousands of students come to our universities, and trillions of dollars of global capital are parked in the U.S. Yet there must be a line. We have citizenship requirements for federal elected offices and controls on selling goods vital to national security overseas. Why should ownership of the free press, the uncompromising bedfellow of democracy, not be subject to the same?
Whose rights?
The idea that the PRC should be able to speak uninhibitedly to the American public was part of TikTok’s argument, “…even if China could exercise overwhelming power against TikTok versus ByteDance, I don’t think it would change the analysis.” EVEN IF the PRC was actively trying to propagandize the American public, undermining national security, they argued: “The government has no valid interest in preventing foreign propaganda.”
First, tackling TikTok’s right to free speech.1 I don’t view the critical issue as TikTok’s rights (I certainly don’t accept that they are an “American company”). The opinion could be written to grant the federal government broad power to infringe upon a corporation’s free speech rights, but that doesn’t seem in keeping with this court’s prior decisions. The critical right that could be hampered is Americans’ right to hear speech and know where the speech is coming from. I previously wrote:
The problem is not what China tells Americans through TikTok and other platforms but the anonymity with which they speak and the lack of anonymity through which Americans listen. When the Athenians stood before the Melians, the Melians knew precisely who they were and could effectively weigh the consequences of the arguments and propositions the Athenians laid out. If the Melian dialogue had occurred under today’s circumstances, not only would the Athenians have owned the forum where they spoke, but they would have done so in a way that would have obscured their identity to the point where it was unclear who was issuing the ultimatum. The opinions of foreign nations are important pieces of information for citizens when making a policy choice, but that information must be complete.
PAFACA doesn’t restrict an American’s ability to receive PRC information. It is not a ban on PRC propaganda. It makes it harder for the PRC to push the information it wants. TikTok’s “content” based censorship doesn’t hold much water.
Second, to address the notion that the government has no valid interest in preventing foreign propaganda. This is quite a statement. Preventing foreign propaganda should not be done lightly, but it is within the government’s interest to prevent adversarial information warfare.2 Preventing foreign propaganda will create constant tension with Americans’ right to hear the propaganda and decide what they think about it. Yet this is not what the divestiture bill is about. PRC’s speech is not restricted; its influence on media outlets is.
This is precisely the U.S. Government’s argument.
GENERAL PRELOGAR: Exactly. And the reason we know this statute is different is because all of the same speech that's happening on TikTok could happen post-divestiture. The Act doesn't regulate that at all. So it's not saying you can't have pro-China speech, you can't have anti-American speech. It's not regulating the algorithm. TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users.
All the Act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform.
The country goes for the red herring
JUSTICE THOMAS: Exactly what is TikTok's speech here?
MR. FRANCISCO: TikTok, Your Honor, uses an algorithm that, in its view, reflects the best mix of content. What the Act does is it says TikTok cannot do that unless ByteDance executes a qualified divestiture. That's a direct burden on TikTok's speech.
[...]
JUSTICE BARRETT: Mr. Francisco, can I ask you a question about the relevant speech here? […] Am I right that the algorithm is the speech here?
MR. FRANCISCO: Yes, Your Honor. The -- well, I would say it's -- you know, the algorithm is a lot of things. The algorithm has built within it -- it's -- it's basically how we predict what our customers want to see.
JUSTICE BARRETT: The editorial discretion?
MR. FRANCISCO: Yeah
TikTok, like all social media companies, employs an algorithm. These recommendation algorithms restrict the choice of the person consuming information. Quoting from my earlier piece on the subject:
It cannot be ignored, however, that the information feed on all social media platforms, not just TikTok, is curated to increase user engagement. TikTok, in particular, has a history of putting its thumb on the algorithmic scale of content recommendation. Pro-Palestinian hashtags far outnumber pro-Israel hashtags on the platform. Black Lives Matter content was sunk in 2020, and a “Stop the Ban” phone-banking campaign was boosted just last week, which (deliberately or not) targeted school children. Shadow banning is a common practice across the entire industry.
This is an asymmetry of choice. The choice of what information gets presented is that of the social media platform alone, but the choice of the user in what to receive does not exist. The problem isn’t that all a young user sees is pro-Palestinian content on TikTok; it’s that it’s all they can see. How can a marketplace of ideas exist if there is only one idea? The solution here isn’t to moderate the ideas or ban platforms from competing in the marketplace but to ensure access to a wide variety of ideas. The choice to consume information, to turn away from it, to seek other opinions, is inseparable from the right to speak. Choosing what to listen to is half of the freedom of speech. The irregular solution is to regulate the algorithm.
Justice Thomas and Barrett were right to ask the question so bluntly. TikTok argued that its speech was its algorithm. A primer on content moderation and free speech laws will probably come at some point in the future, but suffice it to say now that from a philosophical position, algorithms should not receive the same protection speech does.
Falling precedent
There is a certain irony that in using free speech arguments to prevent a ban, TikTok may open up an opportunity to restrict the broad free speech protections Americans enjoy. At the same time, their opposition, the U.S. Government, a long-time loser in these precedential cases, may benefit. The authoritarians may very well lose the battle, but they are winning the war by breaking down free and open societies.
I find myself at odds with the free speech organizations I am normally 100% aligned with. The ACLU and the Knight First Amendment Institute wrote compelling amicus briefs, even though I think they underestimated the PRC’s information warfare prowess and overstated what PAFACA is doing.
I do agree with the sentiment that this issue could be warped by the court to restrict free speech in ways that go well beyond what the narrow law wants to do. I don’t think these organizations are crying wolf when they say this case could give the government new prior restraint power. The Knight First Amendment Institute wrote:
“If the Court upholds the ban, it will be giving the government sweeping new power to distort and manipulate discourse in the United States by restricting Americans’ access to foreign ideas and media.”
Prior restraint by regulation
CHIEF JUSTICE ROBERTS: But, again, I'm not sure there's another case where we've said that regulating a company has -- should be -- others' expression should be treated as direct imposition on their speech in terms of a standard of review, for example, when it's based on derivative regulation of corporate structure of somebody else.
In his line of questioning, the Chief Justice asks how much third parties’ First Amendment interests matter when regulating a company. This post is already getting too long, and there is much to write on this issue, but suffice it to say, it may be plausible a future ruling makes it so the government does not have to consider any speech ramifications during regulation–opening up a path for prior restraint by creative regulation.
The right to receive
I’ll quote the New York Times at length for the potential damage to the constitutional right to hear speech.
In 1965, during the Cold War, the court struck down a law requiring people who wanted to receive foreign mail that the government said was “communist political propaganda” to say so in writing.
That decision, Lamont v. Postmaster General, had several distinctive features. It was unanimous. It was the first time the court had ever held a federal law unconstitutional under the First Amendment’s free expression clauses.
It was the first Supreme Court opinion to feature the phrase “the marketplace of ideas.” And it was the first Supreme Court decision to recognize a constitutional right to receive information.
There is a real danger that when (I assume inevitably) the Supreme Court rejects TikTok’s argument that the national government has no interest in preventing foreign propaganda, they take a slice out of Lamont. I think Lamont and the TikTok case have several distinguishing factual features, yet because of the centrality of the free-speech arguments, it may not matter.
National security as carte blanche
The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.
The quote above was from New York Times Co. v. United States, another endangered precedent. As mentioned above, I think SCOTUS will find that national security is a legitimate reason to regulate a company. I worry that they will expand this to say something along the lines of national security being enough to actually start legitimately moderating content and depart from the secretive jawboning they have previously been engaged in.
My hope is that this case will be narrowly written to cover regulating foreign controlled entities in the interest of national security with tangential First Amendment consequences and that this case becomes a footnote in history, rarely cited and called upon as rational for prior restraint. Given the short timeline between the oral argument and the law’s implication, we may find out in the next few days. The clock is ticking.
Other TikTok News
Profile of TikTok founder Zhang Yiming
A more technical (but still lay-oriented) article on how a TikTok ban would work.
The Knight First Amendment Institute amicus brief
TikTok users retained their own counsel. I’ve omitted their arguments for the sake of space (this post is pushing 3,000 words), but generally, I don’t find their arguments that compelling. Should this be a case about social media in general, I would change my tune, and the majority opinion may make it one.
What we are witnessing with information warfare is a far cry from The Peking Review, the subject of Lamont v. Postmaster General, which I’ll discuss later. For further reading on PRC information warfare, here are two good primers from CSIS and RAND.