The U.S. Supreme Court Demotes The First Amendment
By upholding TikTok ban, the U.S. Supreme Court makes a central pillar of the U.S. Constitution, the First Amendment, subservient to theoretical "national security concerns."
Ed. Note: On 1/20/25, U.S. Pres. Donald Trump signed an executive order delaying enforcement of the TikTok ban for 75 days.
China potentially could influence unsuspecting Americans through the TikTok social media app, but does this possibility justify a wholesale attack on the First Amendment?
The U.S. Supreme Court apparently thinks so.
The Court Friday unanimously upheld TikTok’s challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act, which requires owner ByteDance Ltd. to sell the U.S. version of the video-sharing app by Sunday or face a ban.
The Court said ByteDance is subject to Chinese laws that require it to “assist or cooperate” with the Chinese Government’s “intelligence work” and to ensure that the Chinese Government has “the power to access and control private data” the company holds.
“TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the government’s national-security concerns,” wrote the Court in its unsigned opinion.
TikTok repeatedly denied sharing data with China, noting China has more efficient means to gather such data, and there is no evidence that such collusion has ever occurred.
The Court said it is a “reasonable inference” that China “might” collect such data from TikTok in the future.
TikTok also argued the ban will “burden” First Amendment activities, including content generation and “receipt of information and ideas” by its 170 million users.
The Court “recognized a number of these asserted First Amendment interests” but concluded that it is more important to prevent a foreign adversary’s control over a massive communications platform with 170 million users in the United States.
The Court insisted the ban does “not target particular speech based upon its content.” The Court held it is “content agnostic” to prevent China from collecting vast amounts of “sensitive data” from TikTok users. However, is that really true?
Critics of the ruling might argue the ban does indeed target particular speech - speech that is critical of Israel.
A U.S. Security Concern?
In 2020, former GOP President Donald Trump issued an executive order generally expressing concern that mobile apps owned by China threaten national security, foreign policy, and the economy of the United States. (Trump has since had second thoughts, stating he no longer supports a TikTok ban.)
But the real threat to TikTok began in March 2024 after a leaked call in which Anti-Defamation League (ADL) director Jonathan Greenblatt blamed TikTok for opposition to Israel’s war on Gaza. “We really have a TikTok problem,” said Greenblatt, noting that young people “think that Hamas’, you know, massacre was justified.”
(NOTE: The International Criminal Court (ICC) in January 2024 found it “plausible” that Israel is committing genocide in Gaza, and the ICC issued arrest warrants in November for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant alleging, among other things, that Israel was starving Palestinians.)
An intense campaign to ban TikTok arose in Congress, led by representatives from both parties who are beneficiaries of massive campaign contributions from Jewish advocacy groups, such as AIPAC, which has never been required to register under the Foreign Agents Registration Act.
Democratic President Joe Biden signed the bill into law in April, ordering TikTok to divest from its China-based parent company or shut down in the U.S. by Sunday.
It was the first time the U.S. passed a law to ban a social media platform.
Ironically, Greenblatt did not call for an outright ban of TikTok, which still operates in Israel.
Opposition to the Gaza debacle might be a U.S. security concern, to the extent that the U.S. is complicit in the plausible genocide, with Congress having provided more than $18 billion to Israel to fund its aggressions in the Mideast. America’s moral standing in the world has plummeted, with former allies flocking to China.
Other Options
Of course, the Congress and the Supreme Court could have considered other options to address the issue of data sharing.
For example, Kate Ruane, who runs the Center for Democracy & Technology’s Free Expression Project, argued that Congress could have worked to enact comprehensive privacy legislation that protects users data no matter which platform they choose to engage with online. The Project opposed the TikTok ban.
The Court acknowledged that data collection and analysis is a “common practice” in this digital age. However, it writes, “TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s \ national security concerns.”
Other foreign social media platforms operate in the United States, including British-based Telegram and Pornhub. However, there is no effort underway to close them.