What if free speech meant banning TikTok?

Produced by ElevenLabs and News via Audio (Noa) using AI narration. Listen to more stories on the Noa app.

Many will read last week’s federal appeals court opinion that might view a ban on TikTok as a loss to the First Amendment, and in some ways it is. If TikTok disappears from the United States, approximately 170 million Americans will lose access to a platform that is central to their daily lives and creative expression. And the court’s deference to Congress and the executive branch’s national security claims continues a pattern of courts weakening First Amendment protections when the government asserts national security concerns.

But the opinion does not need to be viewed solely through this lens. Significantly, the court rejected the usual national security versus First Amendment narrative and instead cast TikTok itself as the First Amendment villain. This approach could have long-term consequences for the government’s ability to regulate the Internet.

Historically, courts have treated cases involving national security and free speech as a zero-sum game: either protecting national security at the expense of First Amendment rights or preserving First Amendment freedoms despite potential security risks. Legal observers (myself included) expected the case to follow this familiar pattern, with the court balancing TikTok’s free speech claims against the government’s national security concerns about privacy and information manipulation.

Read: America lost track with TikTok

But in its decision, the court did something unexpected. In addition to acknowledging the government’s national security arguments, it highlighted an important tension within the free speech argument: the right to access and speak on the platform of one’s choice versus the right to have platforms that are free from foreign manipulation and control. The court stated:

This anti-distortion principle for government regulation of public expression was once a central element of the First Amendment, particularly in campaign finance cases, until the Supreme Court rejected it when it struck down caps on corporate campaign contributions Citizens United vs. FEC. Recently, last semester Moody vs. NetChoicethe court criticized state laws that restrict social media content moderation by citing an (in)famous 1970s precedent that the government “cannot restrict the speech of some elements of our society for the sake of the relative voice.” to strengthen others.”

But the anti-distortion principle lives on in cases involving national security. For example, just a year later Citizens unitedThe Supreme Court upheld a ruling by then-Judge Brett Kavanaugh of the D.C. Circuit Court that foreigners had no right to contribute to U.S. elections under the First Amendment.

The anti-distortion argument also played a role in the concurring opinion from D.C. Circuit Chief Judge Sri Srinivasan, which focused on the long history of legislation restricting foreign ownership of key sectors of the U.S. economy, including radio , television and mobile communications, restricted networks. These restrictions were motivated by the same legitimate concerns as the TikTok law: the possibility of covert manipulation of the American information environment. The emphasis here is on hidden because, as Srinivasan pointed out, “counter-speech” – that is, responding to offensive speech with more speech – “is elusive as a response to covert (and therefore presumably undetected) manipulation of a social media platform.”

TikTok only offers a few good options. The law bans app stores and cloud service providers from hosting TikTok and its app unless ByteDance, its Chinese parent company, sells the company, which is unlikely to happen. Donald Trump fought the law (although he tried to ban TikTok during his first term), but he has backed away from his promises to save TikTok. Even if he wants to help the struggling company in his second term, his options are limited because the main players are private companies like Apple and Oracle that face penalties for providing services to TikTok.

From the November 2021 issue: The largest autocracy on earth

That leaves the Supreme Court, where TikTok plans to appeal the D.C. Circuit’s decision. Although the justices are not required to hear the case, they may be inclined to do so given the high legal and political risk. They are also likely to pause the law during deliberations, giving TikTok breathing space until the court’s decision this summer. But TikTok may not find the court more open to its cause than the D.C. Circuit’s cross-ideological jury.

As a result, TikTok as we know it may no longer be America’s leading short-form video platform as soon as this summer. The longer-term impact of the litigation is less clear. If the Supreme Court accepts the D.C. Circuit’s reasoning that a ban on TikTok complies with and actually advances First Amendment principles – particularly if it extends that reasoning beyond the national security context—It could open the door to stricter government regulation limiting some speech rights to protect the First Amendment more generally. While this would go some way to validating a long-standing goal of liberals and progressives to address the shortcomings of unregulated speech environments, who in government wields that power matters a lot — and given the new Trump administration, the implications could be troubling.