A DC Circuit court has upheld the governments effort to censor the entirety of TikTok… claiming such a move protects free speech?
Imagine if you would a major television news network that reports the news every day. One day, the government decides that it doesn’t like the coverage of the government. So, in response, it passes legislation ordering the shut down of that news broadcaster.
Well, the response would be obvious. The broadcaster would flip their lid and scream to high heaven about censorship – and they would be totally right. Singling out a news broadcaster for legally protected speech and ordering its shut down would, in fact, be government censorship. In fact, pretty much every news outlet would be howling about government censorship along the way. Yet, the government would then respond by saying that censoring that one news outlet is in the national security interests – while failing to really point to any particular threat that the broadcaster posed in the first place.
At that point, the even more obvious would ensue: litigation. They would likely argue, among other things, that the effort to shut down the broadcaster for no real reason other than satisfying a personal vendetta would be unconstitutional, violating protections for freedom of expression. Again, I wouldn’t disagree with that assessment. Such an effort would be illegal government censorship.
Now imagine the anxiety and freak outs if an appeals court ruled that the government censoring the media is little more than an effort to protect free speech before dismissing the case. The shrieks of horror would be deafening from the media. Open questions would be asked whether free speech even really exists in the country beyond what was written on a piece of paper.
Such a scenario might seem like a theoretical extreme even if it is seemingly less implausible for the incoming Trump regime. Now, what if I told you that this very scenario is actually playing out today in the US? The target isn’t a national news broadcaster, but a substantially larger social media platform instead. The scenario is, otherwise, pretty much the same.
In response to the governments efforts to censor them, TikTok has sued to stop the banning of its platform in the US. They, obviously, claimed it violates freedom of expression of not only itself as a company, but also the tens of millions, if not, hundreds of millions of its users that use it regularly. The federal government, working with law enforcement and various spy agencies, tried to find evidence that the platform represented a unique security and privacy risk, but those efforts turned up nothing. Instead, they relied on hypotheticals and theories as opposed to actual evidence of, well, any kind at all.
Still, the efforts went ahead anyway despite the total lack of evidence and the government implemented the TikTok ban legislation anyway. This obviously resulted in the lawsuit and, today, we are learning that a court has ruled that censorship is little more than an effort to protect free speech. From Techdirt:
The law requires ByteDance to divest of TikTok in the US by January 19th, or it then requires various intermediaries (such as the Google and Apple mobile app stores) to block access to its app. ByteDance challenged the law as unconstitutional, and many First Amendment experts agreed.
Unfortunately, the Court did not.
In a tortured and alarming opinion, the court ruled that while banning TikTok clearly impacts speech, the law somehow passes strict scrutiny, the highest level of First Amendment review. The court’s reasoning that blocking potential Chinese government influence over TikTok’s content moderation enhances free speech is deeply flawed. Banning an entire platform, and the speech of millions of Americans on it, does far more damage to the First Amendment than the speculative concern that China might try to influence content moderation decisions.
Indeed, the ruling’s dangerous language could be used to justify all sorts of future government censorship and control over online speech.
There were some questions about which standards of review should apply, and the Court admits that this is a novel case on that point, but then says it doesn’t matter, because the law would pass any level of scrutiny. However, the court’s analysis of the strict scrutiny factors is highly questionable. The key elements of strict scrutiny are that the law serves a “compelling government interest” and that the regulations are “narrowly tailored” and are the “least restrictive means.”
The panel says that it’s a compelling government interest to ban TikTok… because the government keeps saying the Chinese government is, like, super scary. There is a fair bit of hand-waving, in which they note that the government presented no actual evidence of China doing anything nefarious with TikTok, but because government officials said “but they could!” that was enough. This sets an extremely low and dangerous bar. Mere speculation about what a foreign government might hypothetically do in the future should not be enough to override the First Amendment rights of millions of Americans.
This is precisely why I wrote about the scenario of the government censoring the media. If screaming “national security” is enough to circumvent constitutional scrutiny, anything can be labelled as a “national security” threat by an abusive government. It could be a news broadcaster, a mom and pop shop, and even a kids lemonade stand. There is no limit to the mass government internet censorship in this scenario.
Over top of that is this:
Then we get to the worst and scariest part of the decision. In talking about the issue of “content manipulation” (i.e., would the Chinese government force TikTok to moderate in a particular manner), the court’s decision argues that blocking China from doing so somehow enhances the First Amendment.
In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC’s ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. See NetChoice, 144 S. Ct. at 2407 (explaining that a state government “may not interfere with private actors’ speech” because the First Amendment prevents “the government from tilting public debate in a preferred direction” (cleaned up)). Here the Congress, as the Executive proposed, acted to end the PRC’s ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.
The court’s reasoning here is Orwellian. It claims that banning TikTok, and the speech of millions of Americans on the platform, somehow enhances free speech. This is a complete inversion of First Amendment values. The First Amendment protects against government censorship and control of private speech, it doesn’t justify such censorship in the name of preventing foreign influence. The court is essentially arguing that violating the First Amendment is necessary to save it, which is absurd.
This ruling opens the door to broad government censorship and control of online speech, all in the name of nebulous “national security” concerns. It’s a blueprint for the government to ban any website or app it doesn’t like.
If this precedent stands, we can expect to see this twisted logic used over and over to “vindicate the values that undergird the First Amendment” by censoring and banning all sorts of online speech and platforms.
This should, at the very least, be raising the highest levels of alarm for those that support free speech. If organizations like the media had any sense of self-preservation and basic critical thinking skills, they would be freaked out about this because this, combined with Trumps hate boner for the media in general, represents a significant set of risks and motives that would put their own futures into question. Instead, they are just blindly supporting the government and acting as though this is just some innocuous formality all the while repeating the governments talking points for mass government internet censorship. For instance, here’s a piece from CBS:
Lawmakers and national security officials have long had suspicions about TikTok’s ties to China. Officials from both parties have warned that the Chinese government could use TikTok to spy on and collect data from its roughly 170 million American users or covertly influence the U.S. public by amplifying or suppressing certain content. The concern is warranted, they have argued, because Chinese national security laws require organizations to cooperate with intelligence gathering.
Another example was NPR:
A federal appeals court on Friday upheld a law banning TikTok nationwide unless the viral video app was sold off by its China-based parent company, rejecting TikTok’s claim that the crackdown violates the free speech rights of millions of Americans.
In its ruling, the court said that it was “precisely” because of TikTok’s “expansive reach” that both Congress and the president determined that divesting it from China’s control “is essential to protect our national security.”
The propaganda was repeated on ABC:
The China-based app has faced growing scrutiny from government officials over fears that user data could fall into the possession of the Chinese government and the app could be weaponized by China to spread misinformation. TikTok’s parent company, ByteDance, has denied those claims.
So, not really putting two and two together on why such a ruling represents an existential threat to their own operations as of yet. Instead, it seems to be more of an attitude that it’s not really their problem and that this is just about something that doesn’t personally affect them. I honestly kind of wonder when Trump takes office and if he starts revoking media’s licensing if that will change the mainstream media’s tune. Of course, by then, it would be far too late for them to start thinking of alternative plans. Moreover, they probably still won’t make the connection of the breakdown of freedom of expression where the latest sign was this ruling really leading to threats to their own presence. It’s probably far more likely that they would consider the attacks on them out of the blue shocking developments that no one would see coming.
If anything, the media should be condemning this ruling to the highest order. There should be op-eds all over the place saying things like how an attack on TikTok’s free speech is an attack on our free speech. Instead, it’s just the media talking heads acting completely clueless, failing to understand the gravity of the situation we find ourselves in. Not the first time given their biased support for Trump leading to Trumps election victory.
Still, this is a major threat to all. If a large company like TikTok can’t stop the denial of their free speech rights, what chance do smaller businesses even have in the first place? People out there running small websites that they maintain as a small hobby isn’t going to stand a chance against the unlimited power of the Trump administration if the Trump administration decides to target them specifically.
The only optimistic thing I can offer in all of this is the knowledge that TikTok is going to appeal. The problem is that the number of chances to knock back this government censorship is dwindling – and the pro-censorship side of the debate is winning for the time being.
