The U.S. Supreme Court Dismisses Legitimate Free-Speech Concerns in Ruling That Allows Jan. 19 TikTok Ban To Proceed

WASHINGTON — On Friday, the U.S. Supreme Court ruled that the scheduled nationwide ban or forced divestiture of the video-sharing platform TikTok could go forward. In a per curiam opinion, the justices refrained from answering the basic question of whether the First Amendment applies to the law at all. Instead it stated that the government’s national-security concerns over data collection alone justified free-speech restrictions imposed on a platform that has 170 million users in the United States. No justices dissented.

On Jan. 10, the justices heard arguments for and against imposing the ban or forced divestiture. Free Press joined a coalition of free-speech groups in an amicus brief stating that this legislative approach violates the First Amendment by unjustifiably restricting Americans from accessing ideas, information and media from abroad. The groups — including Free Press, the Knight First Amendment Institute and PEN America — reiterated that the law requiring the ban or divestiture fails to address internet-wide privacy concerns. Singling out TikTok to curb its invasive data-collection practices does nothing to address the same practices found on the vast majority of websites, mobile apps and other platforms that people engage with every day.   

The ban is scheduled to take effect on Jan. 19.

Free Press Policy Counsel Yanni Chen said:

“The Supreme Court didn’t just get it wrong — the decision is a troubling dereliction of the Court’s duty to uphold our Constitution. Protecting the First Amendment rights of the 170 million Americans who use TikTok every day to access news, information and entertainment must take priority over the unproven national-security concerns raised in this case. And while the ruling holds that the law does not, on its face, regulate speech ‘because of the messages or ideas being conveyed,’ this Court ignored the extensive record showing that Congress aimed to do just that.

“The government should not violate the First Amendment rights of TikTok creators and users because of unsubstantiated, abstract fears around national security. Our First Amendment jurisprudence does not, and should not, work that way. Singling out TikTok in this way fails to solve the urgent problem plaguing Americans’ digital lives and ignores the rest of an entire business sector dedicated to continuously harvesting our data and then selling it to the highest bidders in the United States and abroad.

“TikTok users in the United States have the First Amendment right to engage with ideas and share beliefs with others on the platform. The legislation mandating this ban seriously implicates that speech, something many justices failed to consider in this ruling. As with repressive laws from oppressive regimes around the world, the real toll of the ban will be on everyday people, many of whom use the platform to organize communities and express views that legacy media often ignore. Banning TikTok sets a dangerous precedent that could pave the way to even more government interventions against online speech.

“Serious data-security concerns plague every single online platform we use. The Supreme Court does recognize that in this decision. The best way to protect people’s privacy from prying governments and data brokers is to pass comprehensive data-privacy and surveillance-reform legislation. This is a far less censorial approach, and one that would address the harmful data practices that U.S.-based companies and domestic intelligence and law enforcement agencies routinely use. The widespread use of data-harvesting practices alone exposes the government’s faulty logic driving this law and related court rulings. 

“Selling TikTok to a U.S. owner will do little to placate national-security concerns in a data marketplace that has few restrictions against the repackaging and sale of user information to the highest bidders, including foreign interests. As with many decisions of this magnitude, it’s the users of popular platforms like TikTok that will suffer the most.”