Excerpts from the Supreme Court’s TikTok decision and what it could mean for the First Amendment

On By Littum



CNN
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The Supreme Court’s remarkably swift decision Friday to allow a controversial ban on TikTok to take hold will have a dramatic impact on the tens of thousands of Americans who visit the app every day and broad policy implications for President-elect Donald Trump.

But that one unsigned opinion of the court and two concurrences also revealed deeper divisions on the court over how the First Amendment applies to social media.

The Supreme Court, which has generally sided with First Amendment interests for decades, overruled concerns raised by TikTok about the prohibition against trampling on free speech. The court also quickly dismissed concerns raised by the Biden administration about the possibility of covert content manipulation by the Chinese government.

First Amendment groups siding with TikTok warned that the ruling could have deeper implications.

“Make no mistake, by allowing the ban to take effect, the Supreme Court has weakened the First Amendment and significantly expanded the government’s power to restrict speech in the interest of national security,” said Jameel Jaffer, executive director of Knight First Amendment. Institute. “Its implications for TikTok may be limited, but the ruling creates room for other repressive policies in the future.”

The ruling came just days after the justices heard oral arguments in another important First Amendment case challenging a Texas law requiring age verification for pornographic sites. A majority of the justices in that case signaled that they were inclined to ultimately uphold the law.

Here are some important takeaways from the Supreme Court’s judgment in the TikTok case:

Over the course of the 27 pages released by the court on Friday, there is a looming debate about the First Amendment and whether it even applied to the law.

That debate has already surfaced in some cases on social media, and there’s a good chance it will happen again. Part of that question is whether content curation on social media — like the design of a news organization’s website — is protected speech, or whether feeding videos to users based on an algorithm is something else entirely.

The justices who signed the court’s per curiam opinion wrestled with whether the law is subject to First Amendment review, since it does not directly regulate the content posted by the app’s users. Instead, the court embraced the idea that the law targets TikTok and its China-based parent company, ByteDance, through the divestment provision.

In other words, the court reasoned, the law may not have anything to do with shutting down cat videos on TikTok. It is about forcing a large company to sever ties with a foreign adversary.

“It is not clear that the act itself directly regulates protected expressive activity or conduct with an expressive component,” the statement read.

Nevertheless, the court recognized that over the years it has not given clear guidance on how the law treats a situation where a law aimed at, for example, a company’s foreign ownership indirectly affects the content that the company publishes.

But the TikTok case, the court said, was not the vehicle to break new ground in the First Amendment sphere. Instead, the court raised the question and then declined to answer it.

“We assume without deciding that the challenged provisions … are subject to First Amendment scrutiny,” the opinion read.

That assumption was seen as wholly inadequate by Justice Sonia Sotomayor, who wrote in a brief concurrence that she agreed with all but that part of the court’s legal reasoning. Clearly, Sotomayor said, the First Amendment was implicated in the TikTok case.

“I see no reason to assume without deciding that the statute implicates the First Amendment because our precedent leaves no doubt that it does,” the court’s senior liberal justice wrote.

Citing social media cases the court decided last year that dealt with content on platforms, Sotomayor said that “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform.”

In the cases, which dealt with laws passed by Florida and Texas that were intended to ensure that conservative views are not silenced on social media, a majority of the court said that social media curation decisions were expressive activity, even if it was not central for the court’s decision.

The Biden administration had made two national security arguments to defend the TikTok ban. The first was that China could gain access to user information, including private messages and videos viewed, which it could use for “espionage or blackmail.”

National security experts also warned that China could covertly manipulate the content on TikTok, either to promote the government’s point of view or sow dissent during a crisis.

In its decision, the Supreme Court focused almost exclusively on the data collection part of this argument. That allowed the court to focus heavily on an issue that did not involve potential First Amendment protection.

“The platform collects extensive personal information from and about its users,” the court’s unsigned statement read.

TikTok “does not dispute that the government has an important and legitimate interest in preventing China from collecting personal data from tens of thousands of US TikTok users,” the court wrote. “Neither could they.”

Data collection, the court acknowledged, is a common practice in the digital age.

“However, TikTok’s scale and sensitivity to foreign opposition control, along with the large amounts of sensitive data the platform collects, justify discrimination to meet the government’s national security concerns,” the statement said.

For decades, the Supreme Court has leaned on First Amendment protections in a way that has blurred the conservative-liberal divide that often decides high-profile culture war cases.

But this week the judges seemed to be moving in the other direction.

In addition to dismissing TikTok’s challenge to the ban on First Amendment grounds, the court also signaled it may be prepared to dismiss another speech challenge dealing with obscenity.

A majority of justices signaled Wednesday that Texas may be allowed to require some form of age verification for pornographic websites, despite an argument by the adult entertainment industry that the law would chill adults’ ability to access protected speech.

Of particular note during those arguments was Chief Justice John Roberts, who repeatedly suggested that the court might consider revisiting precedents protecting online obscenity.

“The technological access to pornography has obviously exploded,” Roberts said. “It was very difficult for 15-year-olds … to access the type of things that are available at the touch of a button today.”

Is rethinking the court’s approach something that “we should at least consider,” Roberts asked, “as opposed to preserving a structure that was accepted and established in a completely different era?”

Exactly what will happen to TikTok on Sunday is murky.

Experts initially expected the app to at least be removed on Sunday from Apple’s and Google’s app stores – which could face fines under the law for continuing to host TikTok after the deadline. TikTok took it a step further in recent days, hinting that it could “go dark” even for those who have already downloaded the app without interference from the Supreme Court.

While the law hasn’t changed, the political winds have certainly shifted.

Trump, who will be sworn in on Monday, has promised to save the app. The White House said Friday, meanwhile, that enforcement of the law “will be up to the next administration.”

All of this could leave it up to TikTok and the app stores to decide how to assess the changing landscape.

CNN’s Tierney Sneed contributed to this report