Thomas A. Berry
Today, the Supreme Court granted review of TikTok v. Garland, a case that could determine whether TikTok will continue to operate in the United States. In this post, I’ll explain how we got here and why the Supreme Court should not take the same deferential approach that the DC Circuit Court of Appeals took in this case less than two weeks ago.
In April, President Biden signed an unprecedented law that required TikTok to either divest from its parent company, ByteDance, by January 2025 or cease operations in the United States. Such divestment would likely be infeasible because ByteDance owns much of TikTok’s code and employs many of the engineers who make TikTok run. And even if it were feasible, American TikTok users would lose access to content from outside the country, fundamentally changing the platform.
The law contained an unusual provision requiring that any legal challenges be brought directly to the Court of Appeals for the DC Circuit, bypassing the federal district courts. Pursuant to that requirement, three lawsuits were filed in the DC Circuit challenging the law, one by TikTok itself and two by various TikTok users. Cato filed an amicus brief supporting these challenges.
In our brief, we address two justifications for the law that lawmakers repeatedly invoked: that TikTok is a platform for propaganda and that it is a platform for misinformation and disinformation. As our brief explains, neither of these arguments can justify the law because there is no First Amendment exception for either propaganda or false speech.
Nonetheless, a three-judge panel of the DC Circuit recently held that the law does not violate the First Amendment. And the reasoning behind the panel’s conclusion likely surprised everyone involved in the case.
First Amendment cases generally proceed in two steps. First, the court must determine what level of scrutiny to apply. This is the more “legal” stage of the case because the level of scrutiny is determined by general rules that are meant to be applied consistently across a wide range of free speech disputes. For example, one such rule is that if a law discriminates against specific speech based on the viewpoint expressed, that law triggers the highest form of scrutiny, known as strict scrutiny.
After the court determines what level of scrutiny applies, the next step is to evaluate the facts of the case under the lens of the applicable level of scrutiny. The higher the level of scrutiny, the harder it is for the law to survive. Under strict scrutiny, for example, a law can only survive if it has been narrowly tailored to achieve a compelling government interest by the least speech-restrictive means available. That’s why the Supreme Court has upheld a law under strict First Amendment scrutiny only three times in history.
Usually, the challengers to a law will win if they can convince the court that strict scrutiny applies. Conversely, the government typically must convince the court that a lower standard of scrutiny applies to stand any significant chance of winning. But surprisingly, the DC Circuit’s opinion assumed (without deciding) that strict scrutiny applies to the TikTok law and then nonetheless upheld the law under that exacting standard.
In the panel opinion, Judge Douglas Ginsburg (joined by Judge Neomi Rao) wrote that the law was justified by two “independently compelling national security interest[s].” As the opinion framed it, these two interests involve countering the Chinese government’s “efforts to collect data of and about persons in the United States” and countering the risk of the Chinese government “covertly manipulating content on TikTok.”
Regarding the first justification, the opinion’s reasoning is remarkably broad. Indeed, the panel’s logic seems to potentially justify a ban on any tech service with a parent company subject to Chinese laws.
The opinion stresses that the Chinese government “has adopted laws that enable it to access and use data held by Chinese companies” and suggests that TikTok might be unique because there is no other company with Chinese ties “operating a comparable platform in the United States.” But the opinion candidly admits that even if there were other such platforms, this would not doom the law for singling out TikTok. The government is free to “focus on their most pressing concerns.” And the opinion accepts the government’s say-so that TikTok is a unique threat based simply on the fact that the government has treated TikTok as a unique threat: “The Government’s multi-year efforts to address the risks posed by the TikTok platform support the conclusion that TikTok was, in fact, the Government’s most pressing concern.”
This reasoning exemplifies the deferential attitude on display throughout the opinion. Time and again, the opinion’s evidence for the danger of TikTok essentially boils down to “because the government says so.” The opinion insists it “would be wholly inappropriate” for the court to “reject the Government’s risk assessment and override its ultimate judgment” that the court had no choice but to pass the law. Why is that? Because “Executive Branch officials ‘conducted dozens of meetings,’ considered ‘scores of drafts of proposed mitigation terms,’ and engaged with TikTok as well as Oracle for more than two years” before the law was passed. The opinion treats the government’s own dissatisfaction with other options as decisive evidence that there were no other options.
Also puzzling is the opinion’s analysis of the second alleged harm: “covertly manipulating content.” In its brief to the court, the government argued that content manipulation would be harmful because it might lead Americans to consume content on TikTok that would “undermine trust in our democracy and exacerbate social divisions.” In other words, the government argued that some of the speech on TikTok itself would harm American society.
The DC Circuit panel perhaps realized that this argument was a nonstarter, since it is a core tenet of the First Amendment that the government cannot burden speech because of a concern that it might be persuasive or influential. But instead of rejecting this rationale entirely, the court reframed it as a governmental interest in protecting TikTok itself from the influence of the Chinese government. The court reasoned that just as the First Amendment protects American websites from the influence of the US government, severing TikTok from its parent company would similarly protect TikTok from meddling by the Chinese government. “Understood in that way, the Act actually vindicates the values that undergird the First Amendment.”
But even if there is truth to the fear of Chinese government interference, TikTok has made it very clear that it does not want to be saved from such interference. To borrow an ironic phrase from medicine, a successful operation would kill the patient. As TikTok explained in its brief, severing relations with its parent company would cause American users to lose access to a global, interconnected platform, and TikTok would most likely cease to operate in the United States entirely. It would be the same as completely banning a foreign book from entering the United States just because some passages had been censored or altered by a foreign government.
And the panel did not simply reframe the government’s argument concerning content manipulation; it also (again) excused a lack of hard evidence that such manipulation will occur. The panel conceded that there was no specific evidence of censorship by the Chinese government yet having occurred on TikTok. But the panel nonetheless held that the law was justified because “the Government reasonably predicts that TikTok ‘would try to comply’” with a Chinese government censorship order. The court held that it must give “great weight” to the government’s “‘informed judgment’” even in the absence of “‘concrete evidence.’” Under such a deferential approach, it is hard to see how the government could not win.
Now that the Supreme Court has taken the case, the question is whether it will treat the law and the government’s justifications as deferentially as did the DC Circuit or whether it will instead demand more detailed proof before accepting that the government’s years-long efforts against TikTok have truly been justified by a compelling need.