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Why the First Amendment Is No Bar to Forcing TikTok’s Divestiture
Courts are increasingly asked to “apply long-standing First Amendment principles to somewhat novel facts” involving digital social media.
They have performed this task often—if not well—in recent cases such as NetChoice v. Paxton, Murthy v. Missouri, and Anderson v. TikTok. The mixed lessons from these efforts were on display in the latest installment in this juridical drama issued Friday from the U.S. Court of Appeals for the D.C. Circuit in the TikTok divestiture case, TikTok v. Garland.
TikTok came before the court asserting several challenges to a law that required its separation from parent company ByteDance, an entity headquartered in and subject to the laws of the People’s Republic of China (PRC).
That law was, as Chief Judge Sri Srinivasan put it, the product of a “strong bipartisan majority of both houses of Congress, together with two successive presidents (one of whom is also the president-elect).” For all that those persons disagree on, all of them agreed “that divesting TikTok from PRC control is a national-security imperative.”
TikTok’s primary arguments against divestiture rested on the familiar assertion that most anything having to do with the business of social media platforms is inherently a matter of protected speech shielded by the First Amendment.
Cast in supporting roles were arguments that the law violated the Constitution’s promise of equal protection and its little-used prohibition on bills of attainder, i.e., laws passed to punish a specific party.
Ultimately, none of these was availing.
Strident though TikTok and its “self-styled creators” were in accusing the government of trying to suppress free expression, it turns out that national security remains one of the few governmental interests insulated against the techno-libertarian bent of the Supreme Court’s recent free speech jurisprudence.
The three-judge panel in the case divided 2-1 over the proper standard of review, but all three agreed that the law passed constitutional muster. The government’s national security justification for the law had two components—one that concerned TikTok’s transfer of American user data to the Chinese Communist Party and another that concerned the Beijing’s manipulation of content shown to American users through its access to the ByteDance-created algorithms that TikTok employs.
The data-protection rationale, all three judges agreed, did not present First Amendment concerns. The desire to prevent the PRC’s manipulation of content on TikTok was, however, another matter.
Writing for the majority, senior Judge Douglas Ginsburg assumed that the divestiture law made a content-based distinction when it addressed the potential for Beijing to mediate the content Americans saw on TikTok.
In doing so, he drew on the Supreme Court’s controversial decision last term in NetChoice v. Paxton, where the court insisted that algorithmic content moderation is necessarily a form of protected expression. That meant that the divestiture law had to clear the demanding “strict scrutiny” standard of review, which requires that the law be narrowly tailored to achieve a compelling government interest.
Despite that usually fatal standard, Ginsburg concluded that Congress’ security rationales were compelling and well-founded, and that the law was sufficiently tailored to them. Thus, the First Amendment was no bar, nor could TikTok’s subsidiary arguments overcome the government’s security interest.
Perhaps this favorable review was colored by the fact that the law had been a priority of both parties under two presidents. It also did not hurt that national security is an area in which courts remain deferential to the political branches, even as their deference to the executive branch recedes in other areas after Loper Bright Enterprises v. Raimondo (2024).
But more specifically, Ginsburg credited the government’s fear that ByteDance and its U.S. subsidiaries would not “comply in good faith with the [National Security Administration]” if left in their current state of ownership. That follows from the very nature of ByteDance, which Ginsburg refers to as a “hybrid commercial threat.”
As one U.S. presidential administration after another made free trade the core of American policy abroad, rivals such as China had no patience for the dogmatism of an undergraduate economics course. Instead, they were busy creating hybrid commercial threats the better to “conduct espionage, technology transfer, data collection, and other disruptive activities under the disguise of an otherwise legitimate commercial activity.”
Through its manipulation of nominally private enterprises, the “PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends,” an activity far afield from the interests and protections of the First Amendment.
The entanglement with the PRC was not speculative. In addition to being subject to the Beijing’s laws on data accessibility, ByteDance apparently houses a “Chinese Communist Party committee” consisting of 138 ByteDance employees. But the presence of party members has not prevented the company from learning to speak in the peculiar idiom of market liberalism and contend to a U.S. court that Congress’ law must be set aside because it “would make TikTok uncompetitive with rival, global platforms.”
Fortunately, the appeals court did not allow TikTok or ByteDance to “[exploit the] corporate form to take advantage of legal protections in the United States.”
Ginsburg’s decision to assume that strict scrutiny applied may have been the prudent choice. It bolsters the decision against criticism if the Supreme Court grants TikTok’s inevitable petition for review. But conceptually, Srinivasan seems to have the more sensible approach, particularly in concluding that the law is not content-based and thus a less demanding “intermediate” tier of scrutiny should apply.
The majority fears that the law made a distinction in content because its application affects some of TikTok’s content moderation decisions. But the majority is never clear on what sorts of content form the basis of the law’s supposed distinction.
As Srinivasan maintains, a content-based law “discriminate[s] based on the topic discussed or the idea or message expressed.” Here, the law’s distinction is premised on the actions and intent of a particular actor deemed by Congress to be a foreign adversary, in this case, the PRC. And as Srinivasan points out, “one can imagine situations in which it would even serve the PRC’s interests to augment anti-China, pro-U.S. content,” for instance, to bolster a narrative of Western bias and warmongering.
Ultimately, the law’s reference is not to the message of any particular content, but to Beijing’s motives for promoting it.
Here, fortunately, there is no consequence to the choice between standards of review, but the reflexive assumption that strict scrutiny applies whenever social media content moderation is implicated could jeopardize the prospects for other beneficial sorts of legislation, such as state efforts to limit minors’ premature access to social media platforms.
And that brings us to a further point.
Although the law and the appellate court’s decision mitigate the national security concerns, critics of TikTok should not expect this decision to accomplish much else. Both opinions are quite clear that once TikTok is truly privatized, i.e., taken out from under PRC control, then “new owners could circulate the same mix of content as before.”
In other words, whatever they deem “expressive content” can be algorithmically funneled with abandon to its tech-addled users.
For a sample of the type of content on which TikTok makes its money, readers might familiarize themselves with the “blackout challenge” that gave rise to Anderson v. TikTok.
The post Why the First Amendment Is No Bar to Forcing TikTok’s Divestiture appeared first on The Daily Signal.
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