TikTok may be running out of time

On By Littum

Len Niehoff
| Detroit News

Last Friday, the Supreme Court heard oral arguments on the constitutionality of a federal statute requiring ByteDance, a Chinese company, to sell its subsidiary TikTok, an American company, by January 19.

If ByteDance doesn’t, that law prevents any US mobile app or internet service provider from hosting TikTok on its platform. The app would disappear from cell phones and laptops.

The court hears the case on a very accelerated schedule. Questions from the justices at Friday’s argument suggest that the Supreme Court will uphold the law.

​The prospect of such a ruling has confused many people, who worry that the law violates the First Amendment. Their concerns are not irrational. The First Amendment asserts that “Congress shall make no law … abridging the freedom of speech.”

A TikTok ban seems to check both boxes: Congress passed a law; that the law threatens to restrict freedom of expression. In fact, the law threatens to shorten it greatly. TikTok claims around 170 million users in the US.

Millions use the platform to talk. They share videos on a wide range of topics, from pictures of dogs riding skateboards to serious discussions about Tibetan Buddhism. Millions more use the platform to listen. They turn to TikTok in search of information, instruction and entertainment.

Sharing and receiving information are both activities protected by the First Amendment. A significant amount of TikTok content involves political speech, which the Supreme Court has held receives the highest level of First Amendment protection. Videos posted there by the two campaigns in the last presidential election received more than six billion views.

And TikTok also qualifies as a speaker. The Supreme Court has repeatedly held that corporations have First Amendment rights of expression. In short, the language of the First Amendment and the popularity and nature of TikTok suggest that it should easily win a constitutional challenge to this law.

Why is it likely to lose?

First, unlike many laws that run afoul of the First Amendment, this one does not expressly regulate the content or point of view of speech. It regulates ownership. Lawyers for the US government argue that TikTok remains free to post whatever it wants. It just needs another owner.

Second, Chinese ownership of a major US media entity does indeed raise legitimate concerns. The Chinese government has used companies based there to do its bidding, and that could affect how ByteDance and TikTok do business.

US government lawyers have argued that China can use its power over these companies to collect personal information about TikTok users and to conduct cyber espionage. While the judge’s questions suggested that the court is likely to uphold the law, they also signaled that the court has yet to figure out how to do so. It is a challenging project.

The Supreme Court has never before made a decision that would deprive tens of millions of American citizens of an immensely popular platform of communication. Can the Court explain why the dangers posed by TikTok justify such an extraordinary speech-limiting result? And while the concerns raised by US government lawyers may be legitimate, at this point they are also largely speculative. Can the Court explain why speculation is sufficient here? And can it explain when, if ever, speculative concerns will justify shutting down other media entities in the future?

Third, the idea that the government has the authority to determine who can own a media entity feels uncomfortably close to a licensing scheme—the very thing the First Amendment was enacted to abolish. Can the Court explain why this case should not concern any media owner who may at some point fall out of favor with Congress?

The Court can fine-tune all these issues by declaring that it defers to the executive and legislative branches in matters of national security. The Court has previously noted that such matters are beyond its constitutional responsibilities and expertise.

In a 2008 decision, the court noted: “neither the members of this court nor most federal judges begin the day with briefings that may describe new and serious threats to our nation and its people.” This principle takes some pressure off the court, but it also introduces a question of its own. Can the Court explain why upholding this statute is an appropriate exercise of deference rather than a mere legal rubber-stamping of a legislative overreach?

It’s an important question because in some ways the biggest danger this case poses isn’t coming from China, ByteDance or TikTok. It comes instead from a court that will abdicate its duty to decide important constitutional questions when the other branches of government say the words “national security. That would be the most dangerous precedent of all.

Len Niehoff is a professor at the University of Michigan Law School and serves as legal counsel to The Detroit News.