As dust settles on this month’s federal court ruling against TikTok that could ultimately ban it in the United States, placing the decision in a broader context is essential. Setting aside legal nuances of tests like strict scrutiny, how most Americans perceive the outcome in TikTok v. Garland –– whether they like or disdain it –– probably hinges on a combination of five more slippery variables.
First and foremost is deference and, specifically, the amount of deference they believe courts should afford the federal government when it asserts national security interests. The US Court of Appeals for the District of Columbia granted substantial deference to the government’s claims of potential harm in Garland.
The second variable is tolerance: How much tolerance do Americans have for evidentiary ambiguity when it comes to the government demonstrating actual harm to those interests? People who demand near absolute certainty –– proof beyond a reasonable doubt, to borrow from criminal law –– of threats to national security surely are unlikely to support the DC Circuit’s decision accepting the government’s claims.
The final three variables are how much: distrust (plus the intensity of it) people harbor toward the nation’s leading foreign adversary, the People’s Republic of China (PRC); use and enjoyment they’ve had with TikTok in recent years; and risk to national security they’re willing to wager to safeguard First Amendment speech interests. Viewed collectively, these five variables suggest that more than legal formalism –– a strict adherence to facts, legal doctrines and tests –– affects contentious cases like Garland.
The DC Circuit upheld, in the face of a First Amendment challenge, the Protecting Americans from Foreign Adversary Controlled Applications Act that President Biden signed in April as part of a broader appropriations bill. The Act designates the PRC as a foreign adversary and identifies TikTok as a foreign adversary-controlled application due to the PRC’s significant control of its parent company, ByteDance. In turn, the measure makes it unlawful for third-party entities to distribute, maintain, update and host TikTok applications in the United States unless the PRC divests itself of TikTok’s ownership. It’s a divest-or-be-banned option for ByteDance.
The government asserted two national security interests –– dangers posed by data collection from millions of Americans via TikTok and the PRC’s covert manipulation of content to “interfere with our political discourse, and promote content based upon its alignment with the PRC’s interests.” These interests held sway with the appellate court, which granted the government significant deference (see the first variable noted above) despite some arguable evidentiary problems (the second variable).
This circles back to the fifth variable –– one’s willingness to risk national security to preserve First Amendment interests. Garland isn’t the first case calculating that balance.
In 1979, US District Court Judge Robert Warren in United States v. Progressive, Inc. confronted what he aptly called “a basic confrontation between the First Amendment right to freedom of the press and national security.” The case pivoted on the government’s efforts to stop a magazine, The Progressive, from publishing an article comprehensively describing the technical details of how to construct a hydrogen bomb.
The Progressive argued that much of the article’s information already was public and “that publication of the article will alert the people of this country to the false illusion of security created by the government’s futile efforts at secrecy.” Conversely, the government contended the article’s publication would jeopardize national security –– it might help an enemy nation build a hydrogen bomb –– and asserted it had a right to classify some of the article’s facts as “restricted data.”
Before granting the government’s request for a preliminary injunction, Warren weighed worst-case scenarios against each other were he to rule in the wrong direction. Specifically, Warren considered what the most dire consequences would be in either direction were he to get it wrong. If he allowed the article’s publication, Warren reasoned the article had “sufficient destructive potential to nullify the right to free speech and to endanger the right to life itself.” In sum, the First Amendment’s guarantee of free expression would be rendered irrelevant if there’s no one left to speak. Warren asserted that that when “faced with a stark choice between upholding the right to continued life and the right to freedom of the press, most jurists would have no difficulty in opting for the chance to continue to breathe and function as they work to achieve perfect freedom of expression.”
Although TikTok’s use by Americans doesn’t pose an immediate doomsday crisis like exploding thermonuclear weapons, its long-term threat to national security may ultimately jeopardize the very freedoms American cherish. If TikTok were to disappear in the US, free speech would not end: People would find another platform on which to communicate. If other current platforms don’t satisfy TikTok users, then a free-enterprise system will produce one.
Ultimately, much more than just legal tests are in play in Garland. It would be profoundly ironic if the PRC, which censors internal dissent and blocks outside news exposing its flaws, used the First Amendment as a sword against the United States. That’s a risk not worth taking.
Clay Calvert is a nonresident senior fellow at the American Enterprise Institute and professor of law emeritus at the University of Florida. He is lead author of Mass Media Law, 22nd Edition (McGraw Hill 2023).
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