“How Not to Decide TikTok: U.S. Press Freedom Hangs in the Balance”
An interesting analysis by Prof. David Cole (Georgetown), the former National Legal Director of the ACLU, at Just Security; an excerpt:
After more than two hours of argument Friday morning in TikTok v. Garland, the Supreme Court appears likely to allow the U.S. government to force divestiture or shuttering of the platform on January 19…. In my view, that’s the wrong result…. [But] how the Court reaches its result may now be more important than the bottom line.
In particular, the Court should reject the government’s principal argument, namely, that the TikTok law is “content-neutral” because it is concerned only with who controls the platform, not the content the platform features. Accepting that rationale would not only harm TikTok, but would weaken First Amendment law across the board….
The Protecting Americans from Foreign Adversary Controlled Applications Act singles out a particular communication platform out of concern about its content, and exempts other platforms based on their e-commerce content, even though they pose similar data security concerns. The government justifies the law as a response to the risk of “covert content manipulation” by China…. That justification is inescapably related to the content on the platform, and under longstanding First Amendment law, should trigger strict scrutiny….
The fact that the government targets an owner rather than any specific message does not make the law any less content-based, where, as the government concedes here, its concern relates to the content that owner might promote. Controlling ownership is at least as potent a censorship tool as prohibiting particular messages, and maybe even more effective. The fact that the owner in this case is a foreign company, ByteDance, ought not change whether the law is content-based….
The Court should also reaffirm, as it stated as recently as last year’s decision in Moody v.NetChoice, that efforts to control the “mix of content” on social media platforms is at its core, “related to the suppression of free expression.” The Solicitor General sought to distinguish the TikTok law on the ground that the government’s concern is not merely with potential content manipulation, but potential “covert” content manipulation. But that makes no sense. Essentially all editorial decisions are covert (including the ones Just Security made in editing this essay), in the sense that the reader of a finished article or watching a newscast is not privy to the countless decisions made about what to cover, what not to cover, and what views to include, promote, or exclude in any expressive product….
If the Court rules that strict scrutiny applies, but this law satisfies it, that will be a huge loss for TikTok and its 170 million American users. But if the Court accepts the government’s contention that laws targeting owners of media companies are somehow content-neutral because they don’t literally specify particular messages to prohibit, the First Amendment and press freedoms more broadly would be the losers.
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